Model Penal Code Research Articles

Wringe, Bill. An Expressive Theory of Punishment.London: Macmillian, 2016. Pp. 186. $99.00 (cloth).

Wringe, Bill. <i>An Expressive Theory of Punishment</i>.London: Macmillian, 2016. Pp. 186. $99.00 (cloth).

Mary Ziegler.After Roe: The Lost History of the Abortion Debate.

Law professor Mary Ziegler’s prodigiously researched After Roe: The Lost History of the Abortion Debate adds a useful layer to our understanding of the history of the American abortion rights controversy. In addition to a great deal of archival research, she summons up the voices of activists on both sides of the issue through a hundred personal interviews. Too often, students of legal doctrine and political activism forget what was at stake for people before and after Roe v. Wade (1973). Ziegler contends that in the first decade after the Court decided Roe, both sides’ views were fluid. Historians had wrongly concluded that the decision immediately revealed a “fault line in American gender politics” (xii). If Ziegler had not limited her study to after Roe, and paid more attention to the lead-up to the case, she would have found evidence undermining both parts of this argument. Roe is important precisely because of its place within a longer abortion rights story. Looking just at the late 1960s when some states began to adopt the Model Penal Code’s recommended reforms of abortion statutes and the second oral argument in Roe reveals that the opposing lines had already hardened. The discourse was far from fluid. The distance between the hierarchy of the Roman Catholic Church’s lawyers and the various voices of feminism was already great and the tone the two sides took was hardly conciliatory. They simply refused to talk to one another. The bitterness of this divide was evident in federal cases from Ohio (Steinberg v. Brown [1970]) and Louisiana (Rosen v. Louisiana State Board of Medical Examiners [1970]). The intractability of the two sides in those cases (that were not argued before the Supreme Court) reappeared in the amicus briefs of Roe’s appeal. These divisions persisted, so that in the immediate period after Roe there was not nearly as much fluidity as Ziegler suggests. Perhaps private correspondence and interviews evidenced a fluidity in positions not found in public statements?

Unpacking insanity defence standards: An experimental study of rationality and control tests in criminal law

The present study investigated the impact of different legal standards on mock juror decisions concerning whether a defendant was guilty or not guilty by reason of insanity. Undergraduate students (N=477) read a simulated case summary involving a murder case and were asked to make an insanity determination. The cases differed in terms of the condition of the defendant (rationality deficit or control deficit) and the legal standard given to the jurors to make the determination (Model Penal Code, McNaughten or McNaughten plus a separate control determination). The effects of these variables on the insanity determination were investigated. Jurors also completed questionnaires measuring individualism and hierarchy attitudes and perceptions of facts in the case. Results indicate that under current insanity standards jurors do not distinguish between defendants with rationality deficits and defendants with control deficits regardless of whether the legal standard requires them to do so. Even defendants who lacked control were found guilty at equal rates under a legal standard excusing rationality deficits only and a legal standard excluding control and rationality deficits. This was improved by adding a control test as a partial defence, to be determined after a rationality determination. Implications for the insanity defence in the Criminal Justice System are discussed.

UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICES

Abstract:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement.

Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of 'Affirmative Consent' in the ALI's Draft Sexual Assault Provisions

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy crimes also carry risks, some of which (in addition to other problems) are displayed by the draft’s requirement that sex occur only in the presence of “positive agreement” by the partner. Like any “affirmative consent” approach, the draft’s “positive agreement” standard must either embrace requirements that many will find objectionable or risk devolving into punishment for simple, tort negligence (or less). Imposing liability on a tort negligence standard would conflict with the Model Penal Code’s general insistence on subjective liability as a predicate to criminal liability. It would also strike many as a regrettably low standard for labelling an actor as a sex offender, and it would risk deterrent losses over time by diluting the stigma associated with the label.

The American Criminal Code: General Defenses

Therearefifty-twobodiesof criminal law in theUSA.Eachstakesoutoftendiversepositions ona rangeof issues.This articledefines the “American rule” for eachof the issues relatingto general defenses, a first contribution toward creating an “American Criminal Code”. The article is the result of a several-year research project examining every issue relating to justification, excuse, and nonexculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority positions, to the Model Penal Code, and to the National Commission’s proposed code. Using these results, in focusing on the most controversial justification defense, Defense of Persons, the article then compares patterns among the states on legal issues with a wide range of other variables—such as state population, racial characteristics, violent crime rates, and gun ownership—highlighting many interesting correlations. Applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking. The goal here is to show how such analysis can be done, and how interesting the revealed patterns can be.

Understanding Traditional Chinese Law in Practice: The Implementation of Criminal Law in the Tang Dynasty (618-907 AD)

UNDERSTANDING TRADITIONAL CHINESE LAW IN PRACTICE: The Implementation of Criminal Law in the Tang Dynasty (618-907 AD) Norman P. Ho * Abstract The Tang dynasty (618-907 AD) is regarded as one of China’s most powerful and cosmopolitan dynasties. Its numerous achievements in the areas of literature, culture, economic development, and empire-building have influenced subsequent dynasties. The area of legal development is also not an exception. The Tang Code, a penal code which was promulgat- ed in its finalized form in 653 AD and is the oldest imperial Chinese legal code to survive to the present-day in its entirety, is regarded as an apex in the development of traditional Chinese law. Indeed, the Tang Code served as a model penal code for later Chinese dynasties, and the philosophical spirit animating some its provisions continues to influence modern Chi- nese criminal law today. Given the importance of the Tang Code and the Tang dynasty more generally, it is not surprising that much has been written about the Tang Code and Tang law. Most scholarship, however, has tended to focus on the history of codification and, more specifically, the Tang Code itself. For example, most scholarship has studied its various provisions, the philosophical bases and justifications behind its various provisions, and so forth. Less research has been dedicated to actually understanding how the Tang Code was implemented and applied in society and to answer ques- tions such as whether the application of justice (as mandated by provisions of the Tang Code) was applied consistently. Drawing on and introducing various selected historical sources (many of which have never been trans- lated to English), this article attempts to address these questions and to discuss the implementation of law in traditional China as viewed through * Assistant Professor of Law, Peking University School of Transnational Law. I would like to thank my colleagues at the Peking University School of Transnational Law and the National University of Singapore Faculty of Law for their helpful com- ments. Many thanks especially to Professor Andrew Harding of the National Univer- sity of Singapore Faculty of Law for his invitation to present the research reflected in this article at the Center for Asian Legal Studies of the National University of Singa- pore. (Contact: nph225@nyu.edu) © 2015 Norman P. Ho. All rights reserved.

Consent Culture and the Forgotten Law of Rape

The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape — that is, non- stranger rape — to a place beyond law’s reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of non- stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.

The American Criminal Code: General Defenses

There are fifty-two different bodies of criminal law at work in the United States, as diverse as they are many. Each one stakes out seemingly innumerable positions on a range of highly contested issues. So, how is one to know what the “American rule” is on any given matter of criminal law? This article takes the first step towards answering this question by presenting the first installment of the “American Criminal Code.”This article is the result of an exhaustive research project that examined every contested issue relating to the general defenses to criminal liability, including all justification, excuse, and non-exculpatory defenses. With this foundation, the article determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects the majority American rule in all respects. The article also compares and contrasts the majority position on each issue to all significant minority positions, the Model Penal Code, and the National Commission’s proposed code.Finally, using the results of these analyses, the article compares patterns among the states for issues within the most controversial justification defense, the Defense of Persons, to a wide range of other variables — such as state population, racial characteristics, violent crime rates, and gun ownership — and highlights many interesting correlations. While applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking many times larger than the present project, the article illustrates how such analysis can be done, and how interesting the revealed patterns can be.

'Life Without Parole' Under Modern Theories of Punishment

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like three strikes. Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals. Further, recent research shows that deterrence and incapacitation-based distributions of punishment commonly conflict not only with principles of deontological desert but also with lay people's intuitions of justice. Research also suggests that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermines its ability to harness the more powerful forces of normative crime-control. This preference for a desert-based distribution of punishment is reflected in the American Law Institute's recent amendment of the Model Penal Code – its first amendment in 48 years – which set desert as the dominant distributive principle for sentencing. Is LWOP an appropriate sentence under that desert principle? The core principle for a desert distribution is this: greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness. Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case). To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases. In other words, a desert distributive principle would not demand LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case. This suggests LWOP ought to be a rare sentence, reserved only for the most blameworthy offenders.

The Model Penal Code, Legal Process, and the Alegitimacy of American Penality

The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely because it is not foundational. In this essay, I try to capture the significance of the Model Penal Code — or to call it by its full name, the Model Penal and Correctional Code — by explaining why it is not foundational. Obviously, this is not going to be a taxonomical, or labeling, exercise, propelled by the desire to properly classify the Code. Classification is not the end, but the means. Much like the Model Penal Code’s distinction among, say, offense element types, it is only worth as much as the light it sheds, in this case on the history and complexion of American penality and, with any luck, even on modern penality in general, in other words, on the Model Penal Code’s, and therefore also Wechsler’s, significance in modern criminal law.

YAFFE ON ATTEMPTS

Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of what it is to attempt something is basically correct and ask whether the criminal law uses “attempt” in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing.

Causing the Conditions of One’s Defense: A Theoretical Non-problem

My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.

Paul Wilbur Tappan (1911-1964)

W ITH THE DEATH of Paul Wilbur Tappan on July 9, 1964, the Schools of Law and Criminology suffered a profound and untimely loss. This distinguished scholar, author, and teacher was taken from us at the threshold of his career at the University of California, but not before his talents and energies gave clear assurance of even greater achievement in public service and in his pursuit of learning. When he was invited to join the faculty at Berkeley in 1962, Paul Tappan was professor of sociology and law and Chairman of the Department of Sociology and Anthropology of Washington Square College, New York University. He had received his Ph.D. degree in sociology from the University of Wisconsin in 1935 and began his teaching career soon thereafter at Miami University of Ohio. Professor Tappan's academic training in the social sciences led to a deep and abiding interest in the study of criminal behavior and the treatment of the criminal offender. Not content with viewing these grave social problems from the viewpoint of a single discipline, he commenced the study of law, winning his LL.B. degree at New York University in 1943 and his J.S.D. at Columbia in 1945. The busy years that followed included teaching assignments at Queens College, University of Melbourne, and in summer session programs at the School of Criminology at Berkeley. During 1953-54, Professor Tappan was Chairman of the United States Board of Parole, a practical experience as rewarding to him as was his service on the Board of Managers of the New Jersey State Prison. He also served as a consultant and member of a legion of professional societies and groups. These include the United Nations Section on Social Defense, the American Correctional Association, the American Bar Association, and the Third International Congress of Criminology for which he was appointed United States National Reporter. Professor Tappan's term as Associate Reporter for the American Law Institute's Model Penal Code project resulted in a significant contribution to the development of the law in the areas of sentencing, treatment

About Some New Modalities of Individualization of the Punishments According with the New Penal Code (Law no. 286/2009)

The individualization of the penal sanctions is a complex operation, and it is realized in three different phases: The phase of incrimination of the penal offences, the phase of precise determination of the punishment and the phase of the execution of the applied punishment. Starting from this reality, the theory of the penal law makes a distinction between the three phases of individualization that correspond with the three mention ones: the legal individualization, the juridical individualization and the administrative individualization. Within each phases, the penal law sanctions are individualized by the activity of particular authorities, within certain limits and with certain methods.The main goal of the study is to present the new modalities of the punishment individualization, adopted by assuming responsibility by the Romanian Government (Law nr. 286/2009). The study also presents other modalities of individualization of the punishment that exist in German Penal legislation, French Penal Code, Portuguese Penal Code, Model Penal Code, used as example by the Romanian Ministry of Justice, the initiator of the project. Along the study, there are presented some of the issues that could appear within the normal application of these new institutions.

Hypnosis, Voluntary Action, and the Law

The Model Penal Code identifies, conduct during hypnosis or resulting from hypnotic suggestion, as an exception to a, act, that is a requirement for responsibility for a crime, on the basis that such cases are involuntary and thus not the responsibility of the actor involved. This paper argues that this exception is not sufficiently well grounded in experimental evidence or known instances of criminal activity under the influence of hypnosis to justify such a general exception in the law, and that allowing such an exception has the potential to create a moral hazard by making hypnosis an excuse for criminal conduct. While such cases of coercive hypnosis may genuinely occur, the circumstances under which it may occur are narrower than the exception describes. This paper summarizes the empirical evidence from studies of hypnosis and past cases in the criminal law where hypnosis was alleged to have produced involuntary criminal actions and argues against the MPC's hypnosis exception to a voluntary act.

The American Law Institute’s Model Penal Code and European Criminal Law

It has been suggested that the American Law Institute’s Model Penal Code might serve as a model for a European Model Penal Code, or at least for the project of assembling general principles of European criminal law. This paper presents a critical analysis of the Model Penal Code project, paying particular attention to the form of the project, rather than its substance, on the assumption that the idea, and the drafting, of the Model Penal Code would be of greater interest to a European criminal law project than its content, a systematic and comprehensive general part and a representative special part of “American criminal law.”

A Fair Punishment for Humbert Humbert: Strict Liability and Affirmative Defenses

In this article, I focused on the intersection of strict liability offenses and affirmative defenses. I sought to explore and evaluate a peculiar discrepancy: all states, as well as the Model Penal Code, deny to a defendant charged with a strict liability offense the defense of mistake, yet at the same time, allow most other affirmative defenses. Is this discrepancy warranted? Consider the following scenarios in which Humbert Humbert is charged with the statutory rape of Lolita: If Humbert Humbert tried to argue that he had acted under a mistaken belief that Lolita was above the age of consent, he most likely would not prevail. He would not prevail even if he made all possible efforts to find out Lolita's true age (e.g., checked Lolita's birth certificate and received a signed sworn affidavit from Lolita's mother) or if he fell prey to Lolita's own deception. The outcome, however, would be different if Humbert Humbert could prove that his misperception of Lolita's age was a result of insanity. In that case, Humbert Humbert would have a valid defense. He would also have a defense if he could show that he had had sex with Lolita under duress. Say, Clare Quilty, engrossed in the production of his pornographic movie, threatened to beat up Humbert Humbert unless he and Lolita performed a sexual act in front of his camera. Obviously, the defenses of mistake, insanity, and duress, albeit belonging to the same family of excuses, differ in many important respects. To see whether certain formative differences may account for the different treatment of these defenses, I examine various excuses on the scales of cognitive-volitional, external-internal, and permanent-temporary. In the end, I conclude that, from the moral perspective, there is: (i) no difference between a permanent and temporary impairment; (ii) a marginal difference in favor of external limitation compared to internal; (iii) a meaningful difference in favor of cognitive impairment compared to volitional. Effectively, this conclusion means that a person who commits a strict liability offense pursuant to a reasonable mistake deserves punishment even less than a person who commits the same crime under duress. I further explore the discrepancy between the treatment of the defense of mistake and other excuses in cases of strict liability from the perspectives of efficiency and other public policies. I conclude that this discrepancy is unwarranted, unfair, and arguably, unconstitutional. Accordingly, I advocate for a revision of the current law and adoption of an across-the-board rule that would make the defense of a reasonable mistake available in any criminal prosecution.

The Attrition of Capital Punishment Worldwide as the American Law Institute Withdraws its Model Penal Code Provision Recommending how to do it

The Attrition of Capital Punishment Worldwide as the American Law Institute Withdraws its Model Penal Code Provision Recommending how to do it

Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability

In criminal cases, courts routinely say that the lawfulness of an actor’s conduct depends in part on the objective probability of harm posed by the conduct. The conventional wisdom among criminal law theorists, meanwhile, is that objective probabilities of the required sort do not even exist, much less determine the lawfulness of conduct. This Article sides with the courts. Drawing on a forgotten but central feature of the Model Penal Code, and on a parallel feature of the law of search and seizure, the Article argues that the answer to the riddle of objective probability lies in the difference between what the actor knows and what the actor merely believes. It argues that probabilities calculated on the basis of what the actor knows – on the basis of “the circumstances known to him,” in the Model Penal Code’s formulation – are not illusory, and moreover are objective in exactly the way that the criminal law appears to require. It argues, further, that the circumstances known to the actor encompass or imply everything essential to actor’s perspective, and so provide a fair basis for determining the justifiability and lawfulness – if not the culpability – of the actor’s conduct.